HomeMy WebLinkAbout11-7625rzi r, R' t "r 3! /-!A OCT ~5 PH Li J
PA PRIDE INSULATION, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
THE CINCINNATI INSURANCE COMPANY, NO. 11 - 7 20
Defendant
: Civil Term
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A
WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT
YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT
FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER
CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY
OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE
SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
Id
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c?6 3 7
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John G. Milakovic
PA ID # 34834
Thomas S. Beckley
PA ID # 77040
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Attorneys for Plaintiff
PA PRIDE INSULATION, INC.,
Plaintiff
V.
THE CINCINNATI INSURANCE
COMPANY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO.
COMPLAINT
AND NOW comes Plaintiff, by and through its undersigned attorneys, and files this
Complaint, averring as follows:
1. Plaintiff is PA Pride Insulation, Inc. ("PA Pride"), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, with offices located at 445
Avenue F, Columbia, Pennsylvania.
2. Defendant is The Cincinnati Insurance Company ("Cincinnati"), a corporation
organized and existing under the laws of the State of Ohio, with offices located at 6200 South
Gilmore Road, Fairfield, Ohio.
# . ' R
3. By an agreement dated September 22, 2009, the Commonwealth of Pennsylvania,
Department of General Services ("DGS"), agreed, in writing, with Herre Bros., Inc. ("Herre"),
that Herre would perform renovations to the Huber Arts Center located at Shippensburg
University, Shippensburg, Cumberland County, Pennsylvania, in return for which DGS agreed to
pay Herre the sum of $362,797.00. A true and correct copy of the aforesaid agreement is hereto
attached marked as Exhibit A.
4. In connection with the aforesaid agreement, Herre and Cincinnati issued a Contract
Bond, with Herre as principal and Cincinnati as surety, wherein Herre and Cincinnati jointly and
severally agreed, inter alia, that all those supplying labor and/or materials in the prosecution of
the work covered by the aforesaid agreement, who have not been paid therefor, could recover
against the Bond in accordance with the provisions of the Commonwealth Procurement Code. A
true and correct copy of the aforesaid Contract Bond is hereto attached marked as Exhibit B.
5. By subcontract dated December 4, 2009, Herre and PA Pride agreed, in writing, that
PA Pride would furnish and install plumbing insulation, in return for which Herre agreed to pay
PA Pride the sum of $9,600.00. A true and correct copy of the aforesaid subcontract agreement
is hereto attached marked as Exhibit C.
6. PA Pride completed the work for which it is making claim on February 14, 2011. As
of that date, PA Pride had satisfied all conditions precedent and had otherwise performed all
obligations on its part to be performed. Alternatively, as of that date, no notice of any deficiency
item had been received as to any of the labor or materials supplied by PA Pride; both DGS and
Herre had accepted all of such labor and materials; and DGS, upon information and belief, has
paid for all of such labor and materials, or, if it has not yet paid, that non-payment is through no
fault of PA Pride.
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7. The amount demanded does not exceed the maximum requiring submission to
compulsory arbitration.
8. Despite demand, Herre has failed to pay to PA Pride an outstanding principal balance
of $960.00, consisting solely of retainage.
WHEREFORE, PA Pride demands judgment in its favor and against Cincinnati in the
principal amount of $960.00, plus interest at the legal rate from February 14, 2011, plus costs of
suit.
Dated: P 3111
Of Counsel
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Respectfully submitted,
4GMilakovic
Thomas S. Beckley
Attorneys for Plaintiff
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VERIFICATION
I, Diane Pawelczyk, hereby verify that I am an adult individual; that I am authorized to
make this verification in behalf of PA Pride Insulation, Inc., the Plaintiff in the foregoing
Complaint; and that the facts set forth therein are true to the best of my knowledge, information
and belief. I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904, relating to unsworn falsification to authorities.
Dated: Q-21- /
Diane Pawelczyk, President
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Edition of 1999
.CONTRACT-NO. DGS 412-53.3
COLLECTIVE NO.•CH00030714
STANDARD FORK OF AGREEMENT
SETNWW TAE DEPARTMENT AND CONTRACTOR'
This AGREEMENT, Executed this 22ryl day of 2009,
by and between the Department of General Services, created by Act
no. 45 of 3OLY 22, 1975, hereinafter called "DE?'1?it T" and
H$RRE BRflS. , INC. of 4417 VALLEY ROAD, ENOLA, PFMSYYLVARIA 17025-
1477 a corporation incorporated under the Laws of the State of
Pennsylvania its successors and assigns, hereinafter called
"CONTRACTOR".
ARTICLE-1 - THE CONTRACT DOCMUMTS
The Contract Documents consist of this Agreement, the
Notice to Bidders, the Instructions to Bidders, the Bid Form, the
Contract Bonds, the Conditions of the Contract (General, Special,
Supplementary and other Conditions)., the drawings of all the
Contracts, the specifications of all the Contracts, all'Bulletins
and addenda issued prior to execution of this Agreement, all
change orders, and the Administrative Procedures of the Bureau of
Construction. These form'the_Contract, and are as fully a part
of the Contract as if attached to thia•Agreement or repeated-
herein.
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ARTICLE 2 - THE WORK
The contractor shall-perform all the Work required by.the
Contract Documents for the construction of Contract No. D.G.B.
412-53.3, Renovation of Huber Arts Center, 3hippensburg
University, Shippensburq, Cumberland County, Pennsylvania
ARTICLE-3 - PROFESSIONAL,
The Professional for this project is USA Architects, Planners
+ii Interior Designers, Inc., 1 nth 306 Street, 7t' Floor., Banton,
Pennsylvania 1$442
ARTICLL 4 - TIME OF "ORCMUM AND COMMON
The Work to be performed under this Contract.shall be
commenced upon the effective date of the Contract. The
Contractor shall commence operations on site no later than ten.
(10) days after the Initial-Job Conference and shall complete all
Contract work.to the satisfaction ana-approval.of the Department,
on or before 422 calendar days from the Date of Initial Job
Conference. Contractor further agrees that time is of the
essence of this Contract, and that, if it faiis to complete the
work within the time specified above, the.Contractor will pay the .
Department, as Liquidated Damages,' and not as a ]penalty for such
failure, the sum of Three Hundred Seventy and---------- -*-------_
(10/100 Dollars -( 376.0'0), per day for each and every calendar day
after the completion date until the Work•is completed and
-accepted. The-Department may extend the completion•date of the
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Contract for causeb set forth in the General Conditions of the
contract and, which, in fact, delay the completion of said-work.
In such case, Contractor is liable for said Liquidated Damages
only after -the expiration of the extended period. .
ARTICLE 5 - CONTRACT SUN
The Department will pay the Contractor for the performance
of the Work, subject to additions and deductions by contract
modification or change order, as provided in the General
Conditions of the Contract, the contract sum of Three Hundred
..Sixty Two TbMsand, Seven.Hundred Nittety-Seven a - ------
----------- 00/100 Dollars ($362,797.00) Base Bid No. 1. Payment
will be made as set forth in the General Conditions of the
Contract. Deductions from or additions to said sum will be made
as set forth in the Conditions of the Contract.
ARTICLE 6 - PROGRESS PAYMENTS
Based upon applications for payment submitted to the
Department by the Contractor, the Department will make progress
payments on account-of the Contract sum to the Contractor, as
provided in the General Conditions of the Contract.
ARTICLE 7 - FINAL PAYMENT
Final payment; constituting the entire unpaid balance of
the Contract sum, will be paid by the Department to the.
Contractor within thirty (30) days after -Final Inspection of the
Work, if the Contract has been fully performed, and a Final
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Application for Payment has been submitted, as provided in the
General Conditions of the Contract.
ARTICLE 8 - UNIT PRICES
NOT APPLICABLE
ARTICLL 9 - M PROVISIONS
9.1 Terms used in the Agreement which are defined in the
Conditions of the Contract have the meanings designated in those
Conditions
9.2 In addition to any other guarantees or warrantees, the
Contractor covenants and agrees, after acceptance of the Work
performed under this Contract, to remedy without cost to the
Department, any such' defect.provided said defects in the judgment
of the Department, or its successors having jurisdiction in the
premises, are caused by defective or inferior materials,
equipment or workmanship. If the corrective work is not
completed within thirty (30) days after notification by the
Department to the Contractor, the Department may do the work and
submit those costs to the Surety Company for reimbursement.
9.3 The Contract Bonds given by the Contractor conditioned
upon the faithful. performance of the Contract and for the payment
of labor, material, equipment rental and public utility service
claims are attached to this contract and are made a part of it.'
No third party shall acquire any rights against the Department
under the,Contract Documents.
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9.4 The Contractor agrees to abide by'and be bound by the
Laws of Pennsylvania relating to and regulating the hours and
conditions of employment.
9.5 Any person, co-partnership, association or corporation
furnishing: labor, material, equipment or renting equipment or
rendering public utility services in connection with performance
of this contract has a right of action to recover the cost
thereof from the Contractor and the surety on the Bond given to
secure the payment of such labor, material, equipment or
equipment rental and services xndered by public utility as
though such person or corporation had been named as obligee; in
such Bond. For those who do not have a contract directly with
the contractor, this right of action may not be exercised unless
the contractor is notified of the claim within ninety days from
the last performance of labor or provision of materials. The
contractor shall include in all of its subcontracts or supply
contracts a provision requiring that its subcontractors and
suppliers notify, in writing, their subcontractors and suppliers
of this requirement. It is hereby agreed that no third party
rights arise•against the Department for any•reason under this
Section, and Contractor hereby agrees to so inform ali
subcontractors in writing.
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ARTICLE 10 - CONTRACT COMPLIANCE REGULATIONS
See Paragraph 15.33 of the 1999 General Conditions of
Contract. Also made a :part of phis contract 'Kyoxlsoration' by --- ---•• --- ----
reference, and as-if fully.set forth•herein,,are all State and
Federal haws prohibiting discrimination in hiring or employment
opportunities.
IN WITNESS WHEREOF, The Department of General Services and'
the Contractor, if incorporated, have caused this contract to be
executed the day and year above written.
witness : C06MONKMTH OF PEMNSYLVANIA
ACTING TIMM THE EPARTIM"
OF GENERAL SERVICES
(Date) Secretary of General Services
(Date)
CONTRACT NO. D.G.S.' 412-53.3
WBS ELEMENT: C-0412-0053-000-000-K-3
Attest: HERRE BROS., INC.
Corporation
9/2/09 By :' - (SI-1 &W,Q 9/2/09
Secretary ,r- Asst. Date V sident Date
Brenda J. Davis Gay a Roberts Howell
Approved.as to legality
and Form
Office• of General Counsel Date,• Office of Attorney General-Date
I hereby certify that funds in
the amount of $362,797.00
are available under Appropriation Symbol
ME
Comptroller '• (Date)
APPROVED ELECTRONICALLY
VIA SAP
6
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B0325423 Edition of 1999
CONTRACT. BM,
KNOW ALL-PERSONS BY THESE PRESENTS, That we the undersigned
NwgZ EMS., INC.
4417 VALLEY ROAD, ENQLA, PENNSYLVANIA 17025-1477
as Principal and R r?xcTMM'f IMAIMA t?mul?1iY
P o Box 1454%. Cincinnati. Surety Company)
6200 s . lsore It . paNrfielel . M 45014
(Address)
a Corporation organized and existing under the Laws.of the State
of Ohio and authorized to transact business in
Pennsylvania, as-surety, are held and firmly bound unto the
Departriient of General Services as hereinafter set forth, in the
full and.just.several sums of
(A) Three Hundred Sixty-Two Thousand, Seven Hundred Ninety-
Seven and--------00/100 Dollars ($362,797.00) Base Bid No. 1,• for
faithful performance of the Contract as designated in'Paragraph
"A"s and
(B) Three Hundred Sixty-Two Thousand,•*Seven Hundred Ninety-.
Seven and---------00/100 Dollars ($362,797.00) Base Bid No.,l,.for
payment for labor, material equipment •rental and public utility
services as designated in Paragraph "B".
Sealed•with•our•respective seals.an'd dates this 2nd day
of September 2009
7,
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Edition of 1999
WHEREAS, the•above Principal has entered into"a Contract '
'
with the Department of-General Services dated the 2W day- of
5 , 2009 for Contract No. D.G.S. 412-53.3, for the.
Plumbing Construction, Renovation of Huber-Arts Center,
ShlMensburg University, Shippensburg, Cumberland County,
an y Vania.
upon certain terms and :conditians.in said Contract more
particularly mentioned; and
WHEREAS; It is one of the Conditions of the Award of the
Department of General Services pursuant to which said Contract is
about to be entered into, that these presents be executed;
NON,* THEREFORE, the joint and "several conditions of this
obligation are such:
A. That,-if the above Principal as Contractor•shall well
and faithfully do and perform the things agreed by it to be•done
and performed according to the terms of said Contract and General
Conditions, including the plans. and specifications therein II?
referred to and made part thereof, and such alterations as may be
made in said plans and specificatiops as therein provided and
which are hereby made part of this Bond the same as though'they
were fully set. forth. herein, and shall indemnify and save
harinless the Department of General Services and all. of its-
officers, agents and employees•from any expense incurred through
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the 'failure of said Cont:ractor• to complete the Work as specified
and for any damages growing out of,the. manner of performance of
said Contract by said Contractor or its Subcontractors.,. or its' or
their agents-.or servants, including, but:not limited to, patent''
trademark and copyright infringements, then this part of this
obligation shall be void; otherwise, it shall be and remain in
full: force and effect.
B. That, if the above Principal shall and will promptly
pay.or cause to be paid all sums-of money which may be due by the
Principal or any of Its S tractors to any person, co-
partners4p, association or corporation for all. material
furnished and labor•supplied or performed in the prosecution of
the Work, whether or not the said material or labor entered into
and become component parts of the Work or improvements
contemplated, and for rental of equipment used, and services
rendered-by public utilities in, or in connection with, the
prosecution of such Work, ihen•this part of this obligatiori•a3hall
be void, otherwise, it shall be and remain in full force and
effect.'
C. It is further agfeed that any alterations•which may be
made in the terms of the Contract or in the.Work to be done or.
materials to be furnished-or labor to be supplied or-performed,
or equipment to be.rented, or public titility services to be
rendered, or the giving by-the Department of General Services of
any extension of time ;f6; the performance of the Contract, or the.
reduction of the retained percentage as permitted by the
Contract, or eny other forbearance on the part of either the
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Edition of 1999
Department of General Services or the Principal to the other,
shall not in ahy..way release. the Principal- and the surety or
sureties- or either or any of.them, their heirs, 'executors,
administzators; successors or assigns, from their liability
-Hereunder; notice to,the surety or sureties of any such
altdrations, extension or forbearance being hereby waived
D. The Principal and Surety hereby jointly and severally
agree with-the Obligee herein that every person, co-partnership,
association or corporation which, whether.as subcontractor or as
a person otherwise entitled to the benefits of this Bond; has
furnished material or supplied or performed labor or rented
equipment used in the prosecution of the Work as above provided
and any public utility, which has rendered services, in, or in
connection with, the prosecution of such.Work, and, which had not
been paid in full therefor, may sue in assumpsit on this Bond in
his, their, or its name and prosecute the same to final judgment
for such sum or sums as may be justly due him, them, or its, and
have execution thereon; provided, however, that the Department of
General Services shall not be liable for the payment of any costs
or expenses of such suit to a third party under any theory of law
of '-equity.
'E., Recovery by' any 'persona, copartnership, association
or corporation hereunder is subject to the provisions of the,Act
of. May 15, 1998, P.I;. 358, No. 57, 62 Pa.C.S.•• Sections 1'01-9509,
as amended, which Act is incorporated herein and made a part
hereof, as fully and completely as'though its provisions were
fully and it length herein recited, except that, where said Act
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Edition of 1999
refers to the•Commonwealth of Pennsylvania ox a Department
thereof,' it is deemed•to refer to the Department of General
Services .
IN WITNESS WHEREOF, The said Principal and Surety hate duly
executed this Bond under seal'the flay and year above written.
Attest: HEM BROS., INC:
Corporation.
9/2/og B7j: 09
asecry "- Afi 8 • Date Vice ent .?' Date
Davis Gehl ts-
T THE CI I 1 14
R NC8 COlipllliY
Suret
9 1/09 By. 9/2/09
PA Resid t g .. Date Attorne t Date
-
Robert t Stri Jr. Robert N S
ie g, Jr.
Approve aW
to gality
and Fo
Office of Chief Counsel -Date Office.of Attorney General Date '
APPROVED ELECTRONICALLY
VIA SAP
9
THE CINCINNATI INSURANCE COMPANY
Fairfeeld, Ohio
POWER OF ATTORNEY
0
KNOW ALL MEN BY THBSB PRESENTS: That THE CINCINNATI INSURANCE COMPANY, a corporation organized under the laws of
the State of Ohio, and having its principal office in the City of Fairfield, Ohio, does hereby constitute and appoint
Donald R. Wert; Patricia C. Robinson; Kathy. R. Reisinger; Eugene M. Fritz;
Robert N. Striewig, Jr.; Anthony S. Phillips; Pamela S. Bentz and/or Deborah L. Cottom
of - Mechaniceburg, Pennsylvania its true and lawful Attorneys}in-Fad to sign, execute, seal
and deliver on its behalf as Surety, and as its act and deed, any and all book rhoiea, undafaivngs, or other like instruments, as follows:
Any such obligations in the Uniited States, up to
Twenty Million and No/100-Dollars #20,000,000.00.).
This appoWmant is made under and by authority of the following:012 passed by the Board of Directors of said Company
at a meaft held in the principal office of the Company, a quorum behrg present and voting, on the 66 day of Deoenber, 1958, which
resolution is sill in effect:
'RESOLVED, dug the President or airy Via President be her+aby vAb= o K and empowered to aqp Wd At6ornelrs CONVOM140,0mok betsilr, .peies ` ar voa';ft`hakwomb Asa f oaf the
Cotposatioa, grad way snslharim any e7fltcer or ssoy smh AttesoeyAs hd to affix the c orpcrate seal; sod shay who or
without cause modify or revob any such appok terent or wily. Any such wl#iogs so exeouw by such Attorneys-in.
Fact 111011 be binding repose the Company as if they had boon duly executed and admowledged by the regularly elected
oflioaes of the Company.
This Power of Attorney is signed and so" by faosimle under and by the suSority of the following Reaolution adapted by the
Board of D eeebus of la Company at a mewing duly called and bend on ties 7+ day of Dooesebe r, 1973.
fiat tiro IS nsieat sfire Feeadeet earn Woe dWaitlesrt sera to seed 4f** Coorpany my be sef wd by
firosildie oar NW.powa: of settarnay gam, and the aigo> m of the S mebry er Astisteet Swm trry and the seat of doe
be a red #v + ?_c a.ta of.AW such pmm and sW m& f o s t, sf carliiesoe :.beaeg
such tleo*r'le dgl d= and semi a1diII be iiad Nn ft on the Company. Any such power to executed cold seat'ed
and ouMed by oadficato so executed and sealed dvA with respect to any bond or undertaking to whdoh it is stmehed,.
continue to be valid and binding on the Comp uy r
IN VMNBSS WHEREOF, THE Cft4CDWM INSURANCE COMPANY has caused dose preseou to be sealed with its corporate
seal, duly attested by its Vice President this 10` day of October, 2008.
THE INSURANCE COMPANY
ereutaar -
a SEAL
' exec '
Vice Presi
STATE OF OHIO ) as:
COUNTY OF BUTLBR )
On this 10% day of October, 2008, before me came the sbovamamed Vice President of THE CINCINNATI INSURANCE
COMPANY, to me personally (mown to be the officer described herein, and soknowledged that doe seal affixed to the preceding ir0hume7t is
the corporate seal of said Company and the corporate seal and the signsdere of the ofdiew were duly affixed and subscribed to said instrument
by the suftrity and dreatlon (said corporation.
.-74;a'
MARK J. A LER, Attorney at Law
NOTARY PUBLIC - SIXI OP OHIO
My ooayr41satta hat no X*katM .
41418. aeeae>frl47Z% O.R.C.
I, the unedexaigaed Secretary erAssistant Secretary ofTHE CINCINNATI INSURANCE COMPANY, hereby verft that the above
is a true and caned copy of ttie Odginel Power o£Attorney honed by sold Company, and do hereby finther oeutify that the said Power of
Attorney is still in full fora and effect.
Q VHN uWV my hand and seal of saV at Fairfield, Ohio.
this d?? d? day of Q'
d i4?r?en
it 8EAL
' err
BN-1005 (10/08)
E-
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HBI Job #1-5-0999
EG_ 1 7 2009 DGS Contract #412-53.3
SUBCONTRACT #5746
This subcontract, made this 0' day of December, 2009 by and between PA Pride Insulation, Inc., 445
Avenue F. Columbia, PA 17512, telephone (717) 684-5000, hereinafter called the Subcontractor, and Herre Bros.,
Inc., hereinafter designated the Contractor.
WITNESSETH:
That for and in consideration of the mutual promises and covenants herein contained, the Subcontractor and
the Contractor agree as follows:
Section A. The Subcontractor covenants, promises and agrees to furnish all material and personal
property of every description, and to diligently and fully perform all work hereinafter described to Renovation of
Huber Arts Center, Shippensburg University, Plumbing Construction, hereinafter called the Project, to be located at
1871 Old Main Drive, Shippensburg, PA 17257, for the use and benefit of Shippensburg University, hereinafter
designated the Owner; in strict.>accordance with the Contract between the Contractor and the Owner entered into
September 22, 2009 and hereby made a part of this Subcontract by reference. Subcontractor acknowledges that all
such documents have been made available for review, inspection and copying.
Section B. The Subcontractor agrees to furnish all necessary management, supervision, labor,
materials, machinery, tools, scaffolding, equipment, engineering, testing all transportation, cartage, handling and
hoisting patterns, models, surveys, field measurement, shop drawings, protection of work and labor for winter
conditions, and/or any other act or thing required to diligently and fully perform and complete those portions of the
work described in Exhibit "A", attached hereto and hereby made a part of this Subcontract.
Section C. The Contractor agrees to pay the Subcontractor for the full, and complete performance
of this Subcontract the sum of $9,600.0 0 (which price is firm and not subject to escalation) and which includes all
applicable federal, state and municipal taxes; and further agrees to make all partial and final payments on account
thereof and in accordance with the terms and provisions of the Subcontract Documents.
Section D. The Subcontractor expressly agrees that the Subcontract price includes (a) all work
provided for in the drawings and specifications, together with all work reasonably inferable therefrom (consistent
with the scope of the project described in the General Conditions); and (b) all increase in cost foreseen or
unforeseen, including without limiting the generality of the foregoing, taxes, labor and materials, the cost of which is
to be borne solely by the Subcontractor. All loss or damage arising from any of the work through unforeseen or
unusual obstructions, difficulties or delays which may be encountered in the prosecution of same or through the
action of the elements shall be borne by the Subcontractor.
Section E. General Provisions
Article 1. Definitions
1.1 The term "Contract" as used herein refers to the Contract between the Owner and the Contractor
for construction of the Project.
1.2 The term "Contract Documents" as used herein refers to the "Contract" between the Owner and
the Contractor, all plans, drawings, specifications, general conditions, supplemental general
conditions, and special conditions, addenda, amendments, and/or instruments of like effect.
1.3 The term "Subcontract" as used herein refers to this Subcontract together with any exhibits,
attachments or addenda incorporated herewith and referred to herein.
1.4 The term "Subcontract Documents" as used herein refers jointly and/or severally to the aforesaid
Contract, Contract Documents and Subcontract.
Article 2. Duties of the Subcontractor
2.1 The Subcontractor is bound to the Contractor by the same terms and conditions and to the fullest
extent by which Contractor is bound to the Owner under the Contract. In the event of any
inconsistency between the terms and conditions of the Contract (including the General Conditions)
and this Subcontract, the more restrictive provisions as applicable to the Subcontractor shall
govern.
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2.2 When requested to do so by the Contractor, Subcontractor agrees to submit a list of any proposed
sub-subcontractors, and Subcontractor shall not delegate, or further subcontract to others the
performance of any of its obligations or work required or contemplated by this Subcontract
without prior written consent of the Contractor, which shall not be unreasonably withheld.
2.3 If Subcontractor enters into agreements with any sub-tier subcontractor, it shall require each sub-
tier subcontractor to agree in writing to be bound by all provisions of the General Conditions
applicable to its work.
2.4 Subcontractor hereby warrants that he has investigated and familiarized himself with all laws and
codes applicable to its work; with the availability, cost and suitability of personnel, materials,
equipment, utilities, etc; with the prevailing wage scales, union benefits and working conditions,
craft jurisdiction, existing labor agreements; all site conditions and restrictions, underground
conditions, prevailing weather and climatological conditions; and any other factors which may
affect Subcontractor's work.
2.5 Subcontractor further agrees that Contractor shall not be liable to Subcontractor on any claim for
additional payment or additional time or any claim whatsoever if such claims directly or indirectly
result from Subcontractor's failure to investigate and familiarize himself with the conditions under
which this Subcontract is to be performed.
2.6 Subcontractor warrants it has visited the site and has become familiar with all conditions at the
site, including without limitation, the conditions described in the General Conditions.
2.7 Generally, the specifications describe Work which cannot be indicated on the drawings and
indicate types, qualities and methods of installation of the various materials and equipment
required for the work. It is not intended to mention every item of Work in the specifications
which can be adequately shown on the drawings nor to show on the drawings all items of Work
described or required by the specifications even if they are of such nature that they could have
been shown thereon. All materials or labor for Work which is shown on the drawings or is
reasonably inferable therefrom as being necessary to produce a finished job shall be provided by
the respective Subcontractors whether or not the Work is expressly covered in the specifications.
Article 3. Integration
3.1 This Subcontract constitutes the entire agreement between the parties and supersedes all proposals,
correspondence, and oral agreements between the Subcontractor, and Contractor if any. Except as
otherwise provided for herein, no changes, amendments or modifications of the terms hereof shall
be valid unless reduced to writing and signed by the parties hereto.
Article 4. Pa ment
4.1 Pursuant to the Contract Documents, Owner is obligated to pay Contractor in the following
manner: The Contractor shall, in the absence of good and sufficient reason, within twenty
(20) days of the receipt of payment by the Owner, pay each Subcontractor, an amount equal
to the percentage of completion allowed to the Contractor on account of such
Subcontractor's Work, less the percentage retained from payments to the Contractor. The
Contractor shall also require each Subcontractor to make similar payments to his
subcontractors.
4.2 Subcontractor hereby acknowledges that the Contractor has fully disclosed the Owner's manner of
payment pursuant to the Contractor Subcontractor Payment Act, 73 P.S. Section 501, et sec
4.3 Provided Subcontractor's rate of progress and general performance are satisfactory to the
Contractor and provided that the Subcontractor is in full compliance with each and every provision
of the Subcontract Documents, the Contractor will make partial payments to the Subcontractor on
the Contractor pay estimate form in an amount equal to 90% of the estimated value of work and
materials incorporated into the Project (and of materials delivered to the Project site and suitably
stored by the Subcontractor) and paid to Contractor by Owner, less the aggregate of previous
payments, within fourteen (14) days of receipt thereof from the Owner or fourteen (14) days after
receipt of Subcontractor's invoice, whichever is later.
4.4 PAYMENT FROM THE OWNER TO THE CONTRACTOR IS A CONDITION PRECEDENT
TO PAYMENT FROM THE CONTRACTOR TO THE SUBCONTRACTOR PURSUANT TO
THIS ARTICLE.
4.5 ON PENNSYLVANIA PROJECTS, IN CONSIDERATION FOR CONTRACTOR'S
AGREEMENT TO ENTER INTO THE SUBCONTRACT, SUBCONTRACTOR HEREBY
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AGREES TO WAIVE ALL RIGHTS TO INTEREST ABOVE THE LEGAL RATE,
PENALTIES AND/OR ATTORNEY'S FEES PROVIDED BY THE CONTRACTOR AND
SUBCONTRACTOR PAYMENT ACT, 73 P.S. SECTION 501 ET SEO.
4.6 ON PENNSYLVANIA PROJECTS, SUBCONTRACTOR HEREBY AGREES THAT, IF THE
OWNER REQUIRES CONTRACTOR TO WAIVE ANY OR ALL OF ITS RIGHTS UNDER
THE CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT, 73 P.S. SECTION 501 ET
SEQ., SUBCONTRACTOR HEREBY AGREES TO SIMILARLY WAIVE ITS RIGHTS
UNDER THE ACT.
4.7 Subcontractor acknowledges that in the event payment is not made to Contractor for any reason
including, but not limited to, default by the Owner, Subcontractor shall look exclusively to the
Owner for payment of any and all funds due under this Subcontract. Subcontractor further agrees
that delay in payment for non-payment by the Owner does not create any separate obligation of
Contractor to pay regardless of the extent of the delay. Subcontractor has the right to pursue
payment from the Owner if the Owner is delinquent in payment per this agreement.
4.8 Within.ten (10) days of execution, the. Subcontractor shall submit to;the Contractor a complete and
accurate schedule of values of the various parts of its work. This schedule, when approved by the
Contractor, shall be used as the basis for making payments.
4.9 On a monthly basis, the Subcontractor shall submit a request for partial payment consistent with
the schedule of values and representing a true and accurate estimate of the work completed during
the immediately preceding pay period. When required by the Contractor, Subcontractor shall
provide an accurate inventory of materials suitably stored at the job site. Each application shall be
accompanied by such invoices, vouchers, waivers, certifications and affidavits as may be required
by the Owner and/or Contractor. The Subcontractor agrees that any application for payment not in
compliance may be meld over for processing at the beginning of the pay period following
correction of such application, with or without notice to Subcontractor.
4.10 No partial payment shall constitute acceptance by the Contractor of the work or material for which
the partial payment is made; nor shall any partial payment constitute a waiver of any right to
require fulfillment of all the terms of this Subcontract. Contractor shall promptly advise the
Subcontractor in writing if the Owner or Contractor disapproves of or is withholding all or any of
a Request for Payment, including change orders. Even if Subcontractor disagrees with
Contractor's disapproval, Subcontractor shall continue to perform all work under this Subcontract
including that in dispute. The Subcontractor shall also take all reasonable steps necessary to
ensure that there will be no work stoppage or delay on account of such disapproval. Both parties
agree to endeavor to promptly resolve such disputes on an ongoing basis.
4.11 The Subcontractor hereby agrees to reimburse the Contractor in the event of overpayment,
together with any costs and expenses including administrative costs and attorney's fees, which the
Contractor may incur in securing recovery thereof.
4.12 Contractor expressly reserves the right to issue joint checks to Subcontractor and its materialman,
suppliers or subcontractors, or any of Subcontractor's creditors having potential lien rights and/or
claims against the work, for any payments that are, or may become, due and owing by Contractor
to Subcontractor under this agreement.
4.13 The Contractor may deduct from amounts due or to become due to the Subcontractor on this
Project any sum due or to become due to Contractor from the Subcontractor whether or not said
sums are in any way related to this Subcontract or Project.
4.14 In the event Subcontractor is in default of or breaches or fails to comply with any provision of the
Subcontract; or in the event that any person asserts, or threatens to assert, any lien or claim,
against the Project, the Owner, the Contractor or any Surety arising from Subcontractor's
performance of this Subcontract, the Contractor may, at its option, withhold out of any payments
due or to become due to the Subcontractor a sum sufficient to completely protect and indemnify
the Contractor and the Owner from all loss, damage and/or expense, including attorney's fees and
litigation costs, until the condition requiring such measure has been remedied by the Subcontractor
to the satisfaction of the Contractor. If the Contractor is compelled to expend monies in
defending, discharging or otherwise disposing of any claim or lien in excess of retained or
withheld sums, the Subcontractor shall, upon demand, reimburse the Contractor for the excess
amount so expended, including reasonable attorney's fees and costs incurred by Contractor
incident to such defense and/or incidental to Contractor's collection from Subcontractor of such
excess.
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4.15 Notwithstanding anything to the contrary contained in this Subcontract, and without any limitation
as to time, Contractor shall not be obligated to make payments to Subcontractor under this
Subcontract: a) when such payment will leave a balance which is less then the retained percentage
plus an amount adequate to satisfy all obligations of the Subcontractor for labor, materials, tools,
etc. furnished or to be furnished by Subcontractor in the performance of its work; b) when
Subcontractor is or with reasonable probability (as determined by the Contract) may become
unable to comply with or completely perform this Subcontract; c) whenever the Contractor, in its
sole discretion, shall determine that the Project is being or is in danger of being delayed by the
Subcontractor; d) pending satisfactory correction, replacement and/or restoration of deficient
work, material, or supplies, or of any work rejected if not conforming with this Subcontract or the
Subcontract Documents.
Article 5. Final Payment
5.1 Final payment will be made within thirty (30) days after the Subcontractor's work has been
completed to the satisfaction of `the `Owner and the Contractor, and the Contractor has :received
from the Owner written acceptance thereof together with payment in full for this portion of the
work. Final payment is subject to Contractor's determination that all the requirements of the
Subcontract have been met and discharged by Subcontractor. PAYMENT FROM THE OWNER
TO THE CONTRACTOR IS A CONDITION PRECEDENT TO PAYMENT FROM THE
CONTRACTOR TO THE SUBCONTRACTOR PURSUANT TO THIS ARTICLE.
5.2 No final payment shall constitute acceptance by the Contractor of the work or material for which
the final payn=t is made, nor a waiver of any right to require fulfillment of all the terms of this
Subcontract. The Subcontractor hereby agrees to reimburse the Contractor in the event of
overpayment, together with any costs and expenses, including administrative costs and attorney's
fees, the Contractor may incur in securing recovery thereof.
Article 6. Financial Condition of Subcontractor
6.1 If at any time Contractor in its sole discretion shall determine that the Subcontractor's financial
condition has become impaired or unsatisfactory, Subcontractor shall furnish additional security
satisfactory to the Contractor within three (3) days after written demand by Contractor.
6.2 The Contractor, Owner's representatives and architect at all times shall have free access to the
office, shops and yards of the Subcontractor to verify any information about the work to be
performed by the Subcontractor.
Article 7. Assignment of Proceeds
7.1 The Subcontractor will make no assignment of the proceeds of this Subcontract without the prior
written consent of the Contractor, which consent shall not be unreasonably withheld. However,
the Contractor shall not be obligated to any assignee of the Subcontractor on account of payments
at any time made in good faith to the assignor and shall not be liable to any assignee of the
Subcontractor for any amount in excess of the net sums owing Subcontractor hereunder.
7.2 By making an assignment of the proceeds hereof, the Subcontractor waives any claims against
Contractor resulting from Contractor's continued payment to assignees or former assignees, not
withstanding notification to Contractor of termination of any such assignment.
7.3 By making an assignment of the proceeds hereof, Subcontractor agrees to assume full liability for
the conveyance to assignees of any payments mistakenly, inadvertently, or otherwise made or
addressed to Subcontractor and Subcontractor agrees to defend and hold harmless the Contractor
from claim or action of any assignee related to this Subcontract.
Article 8. Performance Bond and Labor and Material Bond
8.1 The Contractor shall have the right to require any Subcontractor to furnish bonds covering the
faithful performance of the Contract and the payment of all obligations arising thereunder as well
as lien discharge bonds pursuant to Waiver of Liens and Release Article detailed below. The
failure of the Subcontractor to furnish a bond within seven (7) days after having been given notice
of such requirements by Contractor shall constitute sufficient cause for termination of this
Contract without notice.
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Article 9. Unit Price Basis
9.1 If the terms of this Subcontract provide for the payment of work performed on a unit price basis,
the unit of measurement for payment shall be one for work certified. Verification of weights or
quantities will be furnished at the time of delivery. In the event the parties fail to agree on the
actual quantity performed, Contractor shall have the right to measure the quantity of work in place
and make final settlement on the basis of such measurement. Unit prices shall be the same for
both additions and deductions.
Article 10. Equipment and Facilities
10.1 The Subcontractor shall provide at its own expense whatever tools; machines; hoisting;
equipment; plant; utilities; services' storage sheds; workshops; offices; first aid or emergency
treatment facilities and any other facility he may deem necessary for the complete performance of
all work required under this Subcontract, and shall remove any such installations and thoroughly
clean and restore the site and premises at the completion of the work.
10.2 If the, Subcontractor has occasion :to :utilize any of the facilities of the Contractor, when and if
available, Subcontractor shall pay an equitable portion of the cost thereof. The Contractor shall
bear no responsibility for any loss or damage from any cause whatsoever arising from
Subcontractor's use of such facilities.
Article 11. Submittals
11.1 The Subcontractor agrees to submit, in sufficient number, all shop or fabrication drawings, design
and performance data, test, samples, operating and/or maintenance manuals for use in the
perfonrance of this Subcontract as directed by the Contractor within thirty (30) days after
execution of the Subcontract unless directed to do so within a lesser period by the Contractor.
1 i.2 Approval of any of the foregoing by the Contractor, the Owner or the Owner's authorized agent
shall under no circumstances alter the requirements of the Subcontract Documents or constitute
acceptance by the Contractor of any method, material or equipment not acceptable to the Owner or
the Owner's authorized agent.
11.3 The Subcontractor agrees that the cost of any of the foregoing required hereunder is included in
the amount of this Subcontract.
Article 12. Materials Furnished by Contractor
12.1 It is hereby agreed by Subcontractor, if furnishing labor only for the finishing, installation or
erection of materials furnished by Contractor, that the following costs, without restriction, are to
be fully recovered by Contractor from Subcontractor:
a) the full cost of material required to replace due to damage by the Subcontractor;
b) the full cost of removing rejected materials when not properly installed or
supplied by Subcontractor; and
c) the full cost of altering any work of Subcontractor not accepted by the Owner's
authorized agent.
Article 13. Cutting, Patching and Blocking
13.1 The Subcontractor shall obtain Contractor's approval for and shall do any cutting, patching and
blocking necessary to complete this work hereunder, and such work shall be performed to the
same standards and shall match any work performed pursuant to the Contract Documents.
Article 14. Maintenance of Site
14.1 Subcontractor agrees to keep the premises and all finished work clean at all times and to remove
from the site all scrap and waste materials resulting from work under the Subcontract within
twenty-four (24) hours after receipt by him from Contractor of written notice to do so.
14.2 The Subcontractor shall properly cover and protect the work of others from damage due to the
performance of the work required under this Subcontract, and Subcontractor shall promptly clean,
restore, or pay for the replacement of any such work damaged or soiled in the performance of its
own work.
143 Subcontractor further agrees to furnish protection at all times for its own work and all materials
stored for use under this Subcontract and to bear and be solely liable for all loss and/or damage of
any kind to or in connection with said work and materials at any time prior to the final completion
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and acceptance thereof, unless said loss or damage is caused solely by the negligence of the
Contractor and is subject to recovery under such applicable insurance policies as may be in effect.
14.4 If the Subcontractor fails to promptly perform such cleaning, protection and/or repair as directed
by the Contractor, the Contractor shall have the right to proceed with such cleaning, protection
and/or repair, and Subcontractor, on demand therefor, shall repay to the Contractor the actual cost
of such work plus a reasonable percentage to cover Contractor's supervision, insurance, tax and
overhead.
Article 15. Payment to Snpnliers and Sub-subcontractors
15.1 Prior to performing any Work concerning, relating to, or under this Subcontract and whenever so
requested by Contractor, Subcontractor shall disclose, in writing, to Contractor, the names,
addresses, telephone numbers, a description of the labor and/or material to be provided, the
contract amount, payments made and balances due for all sub-subcontractors, materials suppliers
andlor other- ,persons and entities that have or will, supply or transport goods, materials,
equipment, machinery, fixtures, services or labor unifier any agreement with Svubcontracto 'for the
Subcontractor's Work under this agreement. In addition, the Subcontractor may, prior to
performing any Work concerning, relating to, or under this Contract, be required by Contractor to
provide a copy of all such agreements to Contractor. The disclosures required by this paragraph is
a condition precedent to Subcontractor performing any work at the Project, but, in no event, shall
the Contractor's failure to enforce this requirement be deemed to be a waiver of Contractor's right
to so demand disclosure by Subcontractor.
15.2 Subcontractor shall pay for all materials and sites furnished and for all work, labor and
services performed as required under this Subcontract, shall execute partial and final releases of
liens upon demand by the Contractor, and shall indemnify Contractor and Owner against and save
them and the premises harmless from any and all claims, demands, liens or suits, for all such
material and supplies purchased and for all work, labor and services performed by others,
including reimbursement of attorney's fees and any other costs of defense incurred.
15.3 The Subcontractor agrees and covenants that money received for the performance of this
Subcontract shall be used solely for the benefit of persons and firms supplying labor, materials,
supplies, tools, machines, equipment, plant or services exclusively for this Project in connection
with this Subcontract; that money paid to the Subcontractor pursuant to this Subcontract shall
immediately become and constitute a trust fund for the benefit of said persons and firms, and shall
not in any instance be diverted by Subcontractor to any other purpose until all obligations and
claims arising hereunder have been fully discharged.
Article 16. Warranties
16.1 The Subcontractor warrants and guarantees the work and materials which he performs or furnishes
under this Subcontract and agrees to make good, at its own expense, any defect in materials or
workmanship which may occur or develop prior to Contractor's release from responsibility to the
Owner. The Subcontractor further agrees to assume, as a direct obligation to the Contractor and/or
the Owner, any guarantees or warranties which would otherwise be the responsibility of the
Contractor or other subcontractors, when such guarantees or warranties have been cancelled as a
result of the Subcontractor's operations in performance of this Subcontract.
16.2 Without limitation of the foregoing or other obligations of the Subcontractor provided for in the
Subcontract Documents, immediately upon the Contractor's demand, the Subcontractor, at its own
expense, shall repair, replace, restore or rebuild, at the Contractor's option, any work in which
defects in materials or workmanship may appear, or which is otherwise not in conformance with
the other warranties of the Subcontractor hereunder, or to which damage may occur because of
such defects or lack of conformance, within one (1) year or such longer period as required by the
Specifications from the date of the Owner's and architect's final acceptance of the project. If the
Subcontractor fails to comply, the Contractor may correct such defect or lack of conformance, as
the case may be, and the Subcontractor shall immediately reimburse the Contractor thereof.
Article 17. Time of Performance
17.1 Time is of the essence and the Subcontractor agrees to keep himself thoroughly informed as to the
overall progress of the Project; to commence and to prosecute the work undertaken hereunder in a
prompt and diligent manner whenever such work, or any part of it, becomes available, or at such
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time or times as the Contractor may direct, so as to promote the general progress of the entire
Project; and Subcontractor shall not by delay or otherwise interfere with or hinder the work or
progress of the Contractor or any other subcontractor.
17.2 Upon Contractor's request, Subcontract shall furnish such evidence as the Contractor may require
relating to Subcontractor's ability to fully perform this Subcontract in the manner and within the
time established as herein provided and cash flow expenditures for labor for its work (which shall
include the estimated payroll for each of the trades it will employ by subcontract).
17.3 The Contractor exclusively shall control scheduling and coordination of the work, including the
periodic updating and re-sequencing thereof, if any and the Subcontractor shall comply therewith.
The Contractor shall have the right to schedule other work at the same time and in the same areas
as the Subcontractor's work and Contractor may, at its sole discretion, schedule work during a
time of winter conditions. The determination of when winter conditions exist shall rest
exclusively with the Contractor.
17.4 The -Subcontractor agrees to:notify ,the Contractor of its objection to,. or inability to comply with,
any directive, notification, order, schedule or revisions thereof dealing with the time or times of its
performance hereof, and to do so within three (3) days of Contractor's issuance thereof.
17.5 Specific requirements as to the time of performance shall take precedence over the more general
requirements of this article.
17.6 In the event of any failure of Subcontractor to complete its work within the required time, the
Subcontractor hereby agrees to reimburse the Contractor for any and all actual and/or liquidated
damages that may be assessed against the Contractor by the Owner, which are directly or
indirectly attributable to work caused by the Subcontractor's failure to comply fully with the
foregoing provision.
17.7 Subcontractor also agrees to pay to the Contractor such damages as the Contractor may sustain by
reason of any delay, directly or indirectly, attributable to or caused by the Subcontractor,
including, but not limited to, recovery of Contractor's overhead and expense related to the
managing and supervising of the prime Contract work.
17.8 At the request of the Contractor, the Subcontractor shall perform certain parts of the work before
other parts, add extra manpower, or order overtime labor in order to comply with the project
schedule, all without an increase in the Subcontract price, unless otherwise specifically provided
in the General Conditions.
17.9 If in order to expedite the final completion of the Work Contractor requests Subcontractor to work
overtime at a time when Subcontractor is not in default in any of the provisions of this contract,
Subcontractor agrees to work said overtime and it is understood that Contractor shall pay
Subcontractor therefore only the Subcontractor's extra labor costs over the rate for regular time
during the period of such overtime, including additional insurance and taxes incurred by
Subcontractor with respect thereto. Time slips covering said overtime must be submitted to
Contractor's authorized agent for checking and approval. No commissions, fees, overhead, or
profit is to be charged by or allowed to Subcontractor for or on account of said overtime.
However, if Subcontractor shall at any time be behind in the work herein contemplated, or if in the
opinion of the Contractor, Subcontractor is delaying the progress of the work necessary to
complete the Project, then and in either such event, if requested by Contractor, Subcontractor shall
cause to be performed overtime work as may be necessary to keep abreast with the general
progress of the work at the Project, and in either such event the cost and expense of such overtime
shall be borne entirely by Subcontractor.
17.10 If the Subcontractor shall be delayed in the prosecution or completion of the Subcontract Work by
the act, neglect or default of the Contractor, the Architect, the Owner, or any other subcontractor
employed by the Contractor upon the project, or by any damage caused by fire or other casualty
for which the Subcontractor is not responsible, or by general strikes or lockouts caused by acts of
employees, then the time fixed by the Contractor for the completion of the Subcontract Work shall
be extended for such period of time as shall be determined and fixed by the Architect as the time
lost by reason of any or all of the causes aforesaid. This shall be Subcontractor's sole and
exclusive remedy for such delay and in no event shall Contractor be responsible for any increased
costs, charges, expenses or damage of any kind resulting from any such delays. No allowance of
an extension of time for performance of this Subcontract will be granted, unless a claim therefor is
presented to the Contractor in writing and within forty-eight (48) hours of the occurrence of the
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cause thereof, and then only if the Contractor agrees to such an extension of time in its sole
discretion.
Article 18. Changes in Work
18.1 Contractor may at any time and without invalidating this Subcontract, by written order and
without notice to surety, make changes in the work herein contracted for consisting of additions,
deletions or other revisions, and the Subcontractor shall proceed with the work as directed. If said
changes cause an increase or decrease in the cost of performance or in the time required for
performance an equitable adjustment shall be made when a request is timely made by
Subcontractor, but only upon the written approval of Contractor. Nothing herein shall excuse the
Subcontractor from proceeding with the prosecution of the work as changed.
18.2 The Subcontract Price shall be adjusted as may be agreed upon between the parties before any
work is changed. In pricing changes in the work, Subcontractor shall use rates approved by
Contractor in accordance with the following provision. Within ten (10) days of this Subcontract
being signed, Subcontractor shall }provide Contractor a list of proposed'labourates for additional
work that may arise on the Project. The rates shall identify the following: (1) base labor rate; (2)
required fringe benefits; (3) required taxes; (4) required insurances and (5) other required labor
mark-ups. Contractor shall have the exclusive right to reject Subcontractor's labor rates and
establish a reasonable labor rate that Subcontractor shall use to price changed work. The overhead
and profit for changed work, unless otherwise limited by the agreement between Owner and
Contractor, shall be limited to: (1) a ten percent (10%) mark-up on the Approved Labor Rates for
overhead and profit: (2) a five percent (5%) mark-up on actual material and equipment costs for
overhead and profit; and (3) if such work requires that Subcontractor use a subcontractor,
Subcontractor shall licnit its subcontractor as set-forth above and Subcontractor shall be limited to
a mark-up of its subcontractor's total of five percent (5%) for Subcontractor's overhead and profit.
All pricing submitted by Subcontractor to Contractor for changed work shall separately list the
labor, material and equipment costs as required herein. If changed work results in a deletion of
any of the Subcontractor's work then the fair and reasonable value of the deleted work, as
determined by Contractor, Architect or Owner, plus fifteen percent (15%) for overhead and profit,
shall be deducted from the Subcontract Price.
18.3 If Contractor and Subcontractor are unable to agree on the price for the changed work, Contractor
shall have the right to order Subcontractor to proceed with the changed work on a time and
material basis. When changed work, other than overtime ordered by Contractor, is performed on a
time and material basis, unless otherwise limited by the agreement between Owner and
Contractor, Subcontractor shall receive: (1) the actual cost of labor including applicable insurance
and payroll taxes, based upon the Approved Labor Rates, plus ten percent (10%) for overhead and
profit, and (2) the actual cost of material and equipment, plus five percent (5%) for overhead and
profit. Unless otherwise provided for in this Subcontract, the foregoing labor and material costs
shall be limited to the following: cost of materials (including sales tax and cost of delivery), cost
of labor (including social security, old age, and unemployment insurance and fringe benefits
required by agreement or custom); workers or workmen's compensation insurance; bond
premiums; rental value of equipment and machinery; and the additional costs of field supervision,
with all other costs and expenses deemed to be covered by the allocation for overhead allowed
herein. In performing changed work on a time and material basis, if such work requires that
Subcontractor use a subcontractor, Subcontractor shall limit its subcontractor as set-forth above
and Subcontractor shall be limited to a mark-up of its subcontractor's total of five percent (5%) for
Subcontractor's overhead and profit. Whenever changed work is performed on a time and
material basis, Contractor shall have the right to audit Subcontractor's books, records, documents
and other evidence bearing on the costs and expenses of the Subcontractor for such changed work.
18.4 No extension to Subcontractor's time of performance as a result of changed work shall be allowed
under this Subcontract unless authorized by Contractor in writing. The value of the changed work
requested by Subcontractor shall include all costs for delay and disruption to Subcontractor's
work. Subcontractor shall not be entitled to any additional compensation for delay and disruption
caused by the changed work unless such costs are requested and approved by the Owner. In no
event, shall Subcontractor be entitled to compensation for the collective impact of changed work.
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Article 19. Claims for Extra Work and/or Additional Compensation
19.1 The Subcontractor agrees to make any claims to the Contractor for damages or additional
compensation based on any alleged extra or additional work, including claims pursuant to Article
18 herein, within three (3) days of being given notice of a change or the discovery of the condition
giving rise to request for additional compensation or damages or within sufficient time (48 hours
prior to the amount of time set forth in the notice requirement in the Contract between Contractor
and Owner for like claims) to permit Contractor to advise the Owner in the manner provided in the
Contract Documents for like claims, whichever is shorter. The Contractor will not be liable to the
Subcontractor on account of any claim not timely or properly presented or until it is allowed by
the Owner. Payment by Owner to Contractor (and receipt of funds by Contractor) for claims by
Subcontractor is a condition precedent to payment by Contractor to Subcontractor for such claims
and this paragraph shall not serve contradict the work required by this Subcontract in Sections A,
B and D above.
19.2 The Subcontractor agrees that any liability of the Contractor to the Subcontractor on any claim of
any sort by the :Subcontractor against Contractor arising in <whc le or in part out of any act,
omission, default, order, directive, decision or change by the Owner, or which could be the subject
of a claim by the Contractor against the Owner, shall be liquidated and limited to whatever the
Contractor actually receives from the Owner, if anything, as a result of the presentation of a claim
based thereon to the Owner, and the Subcontractor shall have no other or further claims
whatsoever against the Contractor based thereon or in any way related thereto. Any claim
prosecuted hereunder shall be subject to the sole direction and control of the Contractor.
19.3 If the Subcontractor encounters any condition which forms the basis of a claim for extra
compensation or time, or any other type of claim, it shall be its duty to give written notice to the
Contractor prior to commencing any work involving said condition so the Contractor may inspect
said condition and take such steps as Contractor deems necessary. In the absence of such notice to
the Contractor, Subcontractor shall be fully liable for any and all expense, loss or damage resulting
from said condition. It is also agreed that Subcontractor shall not be entitled to any additional
payment or compensation under this Subcontract without the express written approval or
Contractor. No officer, employee or agent of Contractor is authorized to direct any Extra Work by
oral order except minor changes in the work not involving extra cost or time.
19.4 All excavation work the Subcontractor is required to perform pursuant to this Subcontract is
unclassified and Subcontractor agrees that it has included in its price all types of earth and soil,
which shall include, but not be limited to, any pebbles, boulders and bedrock, municipal waste,
rubbish, and garbage and all types of debris of the construction industry such as wood, stone,
concrete, plaster, brick, steel, pipe, wire, paper and glass, but does not include unforeseen concrete
foundations, walls or slabs. All materials which are unclassified shall be removed to the required
widths and depths to accommodate the work at no additional cost to Contractor.
Article 20. Disputes
20.1 In the event of any dispute between the Contractor and the Owner which involves the work
required to be performed by Subcontractor under this Subcontract, or in the event of any dispute
between Contractor and Subcontractor which involves a claim against the Owner for either
additional compensation and/or an extension of time under the Contract Documents,
Subcontractor agrees to be bound to Contractor and Contractor agrees to be bound to
Subcontractor to the same extent that Contractor is bound to the Owner by the terms of the
Contract Documents and by all decisions or findings made thereunder by the persons so
authorized in the Contract Documents, or by an administrative agency or court of competent
jurisdiction, whether or not Subcontractor is a party to the proceedings before said person, agency
or court.
20.2 If any dispute or claim is prosecuted or defended by the Contractor, and Subcontractor is not
directly a party or litigant, Subcontractor agrees to cooperate fully with Contractor and shall pay or
reimburse Contractor for all expenses and costs, including reasonable attorney's fees, incurred in
connection therewith to the extent of the Subcontractor's interest in such claim or dispute.
20.3 It is expressly understood and agreed in connection with the determination of such claim or
disputes that Contractor shall never be liable to Subcontractor to any greater extent than Owner is
liable to Contractor.
20.4 In the event of any claim or dispute between Contractor and Subcontractor, it is further
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specifically agreed by the parties hereto that no claim shall interfere with the performance work
required to be performed under this Subcontract.
Article 21. Default
21.1 In the event the Subcontractor fails to comply, or becomes unable to comply, or with reasonable
probability (as determined solely by Contractor) will become unable to comply, with any of the
provisions of this Subcontract; or in the event Subcontractor fails at any time to supply a sufficient
number of properly skilled workmen with sufficient materials, equipment or plant of proper
quality or fails in any respect to prosecute the work with promptness and diligence; or causes by
any action or omission a stoppage of or delay in the work of the Contractor or other subcontractor
of Contractor; or in the event Subcontractor abandons its work or any part thereof; and such
failure, inability or deficiency (as determined solely by Contractor) is not corrected within one day
after written demand by the Contractor to the Subcontractor; the Contractor may, in addition to
and without prejudice to any other right or remedy, take over and complete the performance of the
Subcontract, at the expense of the Subcontractor; or the Contractor may, without taking over the
work, immediately and without notice to Subcontractor, furnish the necessary materials and<9abar
through itself or others, to remedy the situation, all at the expense of the Subcontractor.
21.2 The parties hereto further agree that any of the following shall, at the option of the Contractor,
constitute inability to comply with the provisions of this Subcontract for purposes of this article: a)
the filing of a petition in bankruptcy or a petition for the appointment of a receiver by or against
the Subcontractor; b) the insolvency of the Subcontractor or its inability to meet its debts as they
mature; c) the establishment of a receivership or any committee of creditors involving
Subcontractor's Business or assets, or the making of an assignment for the benefit of
Subcontractor's creditors; or d) the failure or refusal of Subcontractor to respond to any written
ordex or notice duty issued by the Contractor.
213 Subcontractor hereby waives any and all defenses, claims or causes of action against Contractor
based in whole or in part on the contention that Subcontractor would have been able to comply
with the Subcontract.
21.4 It is further agreed that the Contractor shall have access to and may take possession of the
Subcontractor's material, tools, and equipment which may be located at the site of the work or en
route to the site that may be necessary to prosecute the work hereunder to completion, all without
liability on the part of the Contractor for any damage or other injury to such materials, tools and
equipment.
21.5 Upon any action by the Contractor pursuant to this article, the Subcontractor shall not be entitled
to further payment on this Subcontract until the work has been completed and accepted by the
Owner and payment therefore has been received by the Contractor from the Owner.
21.6 If the expense incurred by the Contractor exceeds the unpaid balance due, the Subcontractor
agrees to promptly pay the difference to the Contractor together with interest thereon at the rate of
the prime rate plus 2% per annum until paid, and the Contractor shall have a lien upon all material,
tools, and equipment taken possession of to secure the payment thereof.
21.7 With respect to expenses incurred by the Contractor pursuant to this article, it is hereby agreed that
the costs and expenses chargeable to the Subcontractor as herein before provided shall include,
without restriction, the cost of materials, labor, subcontracts, purchase orders, transportation,
equipment and expense thereon, supplies, services, insurance, taxes, appliances, tools, utilities,
power used or consumed, supervision, administration, job overhead, travel, attorney's fees, legal
and accounting fees and expenses, Contractor's general overhead as allocated to the work and
other costs and expenses incurred or sustained by the Contractor, plus ten percent (10%) profit on
the actual cost of the work performed as well as on the amount of claims paid by the Contractor
for Subcontractor or for which it deems itself liable.
21.8 In no instance will any action whatsoever taken by the Contractor pursuant to this Subcontract
relieve or mitigate Subcontractor's full and absolute responsibility for any and all of the
Subcontractor's obligations under this Subcontract.
21.9 In the event the employment of the Subcontractor is terminated by the Contractor for cause under
this Article and it is subsequently determined by a court of competent jurisdiction that such
termination was without cause, such termination shall thereupon be deemed a Termination for
Convenience under Article 22 and the provisions of Section 22.1 shall apply.
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Article 22. Termination for Convenience
22.1 The Contractor may, at any time, terminate this Subcontract in whole or in part for the
Contractor's convenience and without cause. Termination by the Contractor under this Paragraph
shall be by notice of termination delivered to the Subcontractor specifying the extent of
termination and the effective date of such termination, the Subcontractor shall recover as its sole
remedy payment for work properly performed in connection with the terminated portion of the
work prior to the effective date of termination and for items properly and timely fabricated off the
Project site, delivered and stored in accordance with the Contractor's instructions. The
Subcontractor hereby waives and forfeits all other claims for payment and damage, including,
without limitation, anticipated profits.
Article 23. Coordination
23.1 The Subcontractor agrees to perform the work called for in this Subcontract in such a manner that
he will not injure or damage any other work performed by the Contractor or any other
subcontractor.
23.2 The Subcontractor further agrees to cooperate with the Contractor and other subcontractors whose
work might interfere with the Subcontractor's work and to prepare sketches and drawings as
directed, and/or to participate in the preparation of coordinated drawings in areas of congestion,
specifically noting and advising the Contractor of any such interference.
23.3 The Subcontractor agrees to have a representative present at regularly scheduled jobsite
coordination meetings. This representative must be a principal of the company or designated
project manager who has the authority to comply with all scheduling and other requests of the
General Contractor. It is further agreed that the Subcontractor's representative shall appear
promptly at the designated meting time. If the Subcontractor fails to attend these meetings on a
timely basis, the Contractor shall have the right to declare the Subcontractor in default of this
Subcontract, and seek all legal remedies in accordance with the terms of this Subcontract.
Article 24. Indemnification
24.1 The Subcontractor agrees for itself and its insures to indemnify, defend and hold harmless
Contractor, Architect, Owner and their parent subsidiary and affiliated companies and their
respective agents, officers, directors, employees and assigns from and against any and all
liabilities, claims, losses, damages, penalties, costs or expenses (including but not limited to court
costs and reasonable attorney's fees) for damage to property of whatsoever kind or nature or injury
to persons (including, but not limited to death) arising out of or due to or claimed to have arisen
out of or been due to design, manufacture, delivery, installation, use, maintenance, repair, or
operation of any part of all of the goods, material, and equipment, if any, supplied by
Subcontractor, or the performance of the work by Subcontractor, its agents, independent
contractors, Sub-Subcontractors, vendors, and each of their agents, officers, or employers, or any
other of their operation, no matter by whom performed for or on behalf of Subcontractor.
Subcontractor's obligations under this indemnity shall not extend to property damage or personal
injury caused by the sole negligence of the indemnitee or its agents, officers, directors, employees,
and assigns.
24.2 In the event and to the extent that a claim is made by an employee of Subcontractor against an
indemnitee hereunder, the intent of this Article is that Subcontractor shall and it hereby agrees to
indemnify Owner, Engineer, Contractor and their parent, subsidiary, or affiliated companies and
each of their agents, officers, directors, employees and assigns to the same extent as if the claim
was made by a non-employee of Subcontractor. Accordingly, in addition to the above provisions,
and in order to render the parties' intent and this indemnity agreement fully enforceable,
Subcontractor, in an indemnification claim hereunder, hereby expressly and without reservation
waives any defense or immunity it may have under any applicable Worker's Compensation Laws
or any other statute or judicial decision disallowing or limiting such indemnification and consents
to a cause of action for indemnity. Said waiver and consent to indemnification is made
irrespective of and specifically waiving any defense or immunity under any statute or judicial
decision disallowing or limiting such indemnification.
24.3 The Subcontractor shall bear any expense of an indemnitee because of any claim or other matter
indemnified against hereunder, including reasonable attorney's fees and court costs in the defense
of, or preparing for the defense against, any such claim, even if such claim or any lawsuit arising
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therefrom is groundless, false or fraudulent. If any such claim has not been settled or discharged
when the Work is finished, final settlement between the Contractor and the Subcontractor and
final payment of the Subcontract Price and the acceptance of the Work shall be deferred until any
such claim is paid or settled or the Subcontractor provides a bond, acceptable to the Contractor, in
its sole discretion, to satisfy such claim. At the request of any indemnitee, Subcontractor shall
retain an attorney to represent such indemnitee in the defense of any such claim, provided,
however, that any attorney employed in such defense must be satisfactory to such indemnitee.
Article 25. Elimination or Reduction of Work
25.1 In the event of elimination or reduction of the work to be performed under this Subcontract by
reason of termination or modification of the Contract Documents or a change in the work to be
done thereunder, either in accordance with the terms of the Contract or the Contract Documents or
by default by Owner, Subcontractor shall not be entitled to recover from Contractor more than its
fair and equitable,portion of any sums received by Contractor for work done or materials supplied
by this Subcontractor on this Subcontract. The rights and claims of the Contractor, :otther
subcontractors and third parties shall be taken into consideration in determining Subcontractor's
fair and equitable share.
Article 26. Collective Bargaining Agreements and Labor Harmony
26.1 Subcontractor shall comply with, observe and be bound by all terms and provisions of any
collective bargaining agreements executed by Contractor or on Contractor's behalf. Subcontractor
shall indemnify and save Contractor harmless from and against any claim, including court costs
and attorney's fees, resulting in any manner whatsoever from Subcontractor's failure to comply
with the provisions of this article of this Subcontract. In the event Subcontractor fails or refuses to
comply with, observe or be bound by any terms or provision of any such collective bargaining
agreements and does not correct such failure or refusal within 24 hours after notice thereof is
furnished to Subcontractor by Contractor, Subcontractor shall be deemed to be in default of this
Subcontract.
26.2 If directed by Contractor, Subcontractor shall perform all work with union labor and equipment.
26.3 The Subcontractor accepts all responsibility to maintain labor harmony with all trades working on
this project during the performance of Subcontractor's Work. Furthermore, Subcontractor will
endeavor to provide all contacts, coordination and agreements with such local labor organizations
as are required to ensure such harmony and without disruption of work in any manner.
Article 27. Permits and Compliance with Law
27.1 Subcontractor shall obtain and pay for all permits, licenses and official inspection made necessary
by its work and shall comply with all laws, ordinances and regulations bearing on the work
required under this Subcontract.
27.2 Without limitation of any other provision hereof, if the Subcontractor performs any Work which is
contrary to such laws, ordinances, codes, riles and regulations, he shall make all changes as
required to comply therewith and bear all costs arising therefrom without additional
reimbursement.
Article 28. Independent Contractor
28.1 The Subcontractor certifies that he is "an independent Contractor" subject, as an employer, to all
applicable statutes and regulations with respect to such status.
Article 29. Employees
29.1 The Subcontractor shall not employ any person in performance of this Subcontract whose
employment might be reasonably objected to by the Contractor or Owner and hereby agrees to
promptly remove from the Project any such person or party.
Article 30. Notice
30.1 Written notice, where required by the terms of this Subcontract, may be accomplished by personal
delivery of said notice or by use of the United States mail or a facsimile communication. The
written notice shall become effective upon the date stated therein, or, if no such date is stated,
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upon the date upon which delivery is complete.
30.2 Personal delivery is complete when the notice is delivered to the Subcontractor or its
representative at the Project or at the office address of the Subcontractor appearing in this
Subcontract. The Subcontractor shall, at all times during its work on this Project, have a
representative authorized to receive written notices present on the Project site during all normal
working hours. In the absence of such a representative, personal delivery is complete when the
notice is delivered to any of its subcontractors, supervisors or workmen, or in their absence, left in
a conspicuous place on the Project site in the area of Subcontractor's work.
30.3 If facsimile is used, completion of the facsimile will have a confirmation notice attached thereto,
to indicate that the fax has been sent in its entirety, and shall have a date reflected thereon.
30.4 When regular or overnight mail is used, delivery is complete for the purposes of paragraph 30. 1.1
on the date first occurring among the following: a) on the day the communication is received by
Subcontractor evidenced by a return receipt furnished by the United States Post Office Department
or by any recognized messenger or delivery service, or b) on the third day after the notice is
deposited in the U.S.:mail addressed to the Subcontractor at its last kwwn address.
Article 31. Superintendent
31.1 The Subcontractor shall at all times maintain a qualified and skilled superintendent or foreman at
the site of the work who shall be satisfactory to the Owner, the Owner's authorized agent and/or
the Contractor. Such superintendent or foreman shall be duly and legally authorized to represent
and act for the Subcontractor with respect to all matters in connection with or arising out of work
under this Subcontract.
Article 32. Subcontractor's Dealing with Owner
32.1 It is agreed that all of Subcontractor's dealings with the Owner's authorized agent, the Owner, or
any other party named in the Contract Documents shall be through the Contractor.
32.2 The Subcontractor further agrees that he shall not make any agreement with the Owner's
authorized agent or with the Owner pertaining to any phase of the performance of this
Subcontract.
Article 33. Contributions Taxes and Insurance
33.1 The Subcontractor agrees to and does hereby accept full and exclusive liability for the payment of
all contributions, taxes, insurance of any description whatever, now or hereafter imposed by any
authority, which are measured by the wages, salaries or other remunerations paid to persons
employed by Subcontractor on work performed pursuant to the terms of this Subcontract.
33.2 Subcontractor further agrees to and does hereby accept frill and exclusive liability for the payment
of all personal property taxes, inventory taxes, sales taxes, use taxes, excise taxes, fuel taxes,
transportation taxes, franchise taxes, and all other taxes, and/or tax assessments in any manner
whatsoever relating to the materials, supplies, tools, machinery, equipment and plant which may
be purchased, acquired, rented or used by Subcontractor relating to all work performed under this
Subcontract.
Article 34. Insurance
34.1 Subcontractor shall require its Subcontractor to provide and maintain at all times during the
performance of the Sub-Subcontractor's Subcontract, Workmen's Compensation and Employer's
Liability insurance for protection of the Sub-Subcontractor's employees, as required by law; and
insurance covering Public Liability Property Damage and Sub-Subcontractor's Contractual
Liability under its Subcontract (including but not limited to all work performance and operation of
automobiles, trucks and other vehicles, excess, asbestos and mold, the values of which are
itemized in Exhibit `B"). The insurance provided by the Sub-Subcontractor shall meet all of the
requirements of this Subcontract including any and all coverage required of Contractor by the
contract documents. All insurance required hereunder shall be maintained in full force and effect
in a company or companies satisfactory to Contractor, at the Subcontractor's expense, and until
performance in full hereof has been accomplished and final payment has been issued in evidence
thereof. Further, such insurance shall be subject to the requirement that Contractor must be
notified by thirty (30) days written notice before cancellation of any such policy. In the event of
the threatened cancellation for non-payment of premium, Contractor may pay the same for
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Subcontractor and deduct the said payment from amounts then or subsequently owing to the
Subcontractor hereunder. In the event Contractor, in its sole discretion, determines that
Subcontractor is not maintaining the insurance required by this Subcontract, Contractor shall have
the right to immediately terminate this Subcontract without any notice to Subcontractor.
34.2 Certificates of insurance must be filed with the Contractor within thirty (30) days of the date of
execution of this Subcontract or prior to commencement of work, whichever is earlier. No
payment shall be considered due and owing hereunder until certificates of insurance satisfactory to
the Contractor have been received in its office.
34.3 Subcontractors' liability policy must list as additional insured both Contractor and the Owner of
the Project. Subcontractor's policy shall be the primary policy.
34.5 To the fullest extent permitted by applicable law, Subcontractor waives all subrogation rights
against Contractor, Owner, and any of their agents and employees: (1) for damages caused by fire
or other perils to the extent covered by property insurance provided under the Principal Contract,
this Subcontract or other,property insurance applicable to the Work, except such rights as they
may have to proceeds of such insurance held by Owner or Contractor as fiduciary, w, d (2) for
other claims to the extent arising out of a loss or claim covered by Subcontractor's liability,
automobile or worker's compensation insurance. Subcontractor shall require of Subcontractor's
sub-subcontractors, agents and employees by appropriate agreements, written where legally
required for validity, similar waivers in favor of other parties enumerated herein. The policies
shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation
shall be effective as to a person or entity even though that person or entity would otherwise have a
duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property
damaged.
Article 35. Effective Date
35.1 The effective date of this Subcontract is intended by both parties to be the date indicated at the
beginning of this Subcontract. The dates appearing by the signatures at the end of this document
merely indicate the dates that the signatures were affixed.
Article 36. Waiver of Liens and Releases
36.1 If Contractor posts a bond guaranteeing payment for goods, materials, and equipment supplied,
labor or services provided to the Project by Subcontractors, then Subcontractor agrees to waive its
right to file a mechanics' lien and that no mechanics' liens, notices, or claims, or materialman's
liens, notices, or claims, or any other liens or claims of any kind whatsoever will be filed,
enforced, or maintained with respect to the goods, materials, and equipment supplied, labor or
services performed pursuant to this Subcontract against the Project for which they are supplied or
performed, or against the owner, real property, building, or other improvements of which the
Project is a part, or any part or parts thereof or the appurtenances thereto by Subcontractor, its
successors and assigns. If the bond posted by Contractor guarantees payment for goods, materials,
and equipment supplied, labor or services provided to the Project by sub-subcontractors, suppliers,
materialman and other entities pursuant to a contract with Subcontractor, then Subcontractor shall
obtain lien waivers from such sub-subcontractors, suppliers, materialman and other any other
similarly situated entities, stating that liens may not be filed on the Project and provide written
notice of this lien waiver provision to its sub-subcontractors, suppliers, materialman, and all other
persons or entities acting by, through, or under it or them, prior to and before any labor or services
are performed, or goods, materials, or equipment are supplied to the Project pursuant to this
Subcontract.
36.2 If Contractor posts a bond guaranteeing payment for goods, materials, and equipment supplied, or
labor or services performed by Subcontractor, then, in the event a mechanics' lien, notice, or
claim, or materialman's lien, notice, or claim, or construction lien claim, or lien, or any other lien
or claim of any kind whatsoever is filed, enforced, or maintained by Subcontractor and/or any of
Subcontractor's sub-subcontractors, suppliers, materialman, and all other persons or entities acting
by, through, or under it or them, then Subcontractor shall defend, indemnify, and hold Contractor
harmless from such liens and/or claims, and shall also cause said mechanics' lien, notice, or claim,
or materialman's lien, notice, claim, construction lien claim, or other lien of any kind whatsoever,
to be discharged in accordance with applicable law. Subcontractor also agrees to pay and
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reimburse Contractor for all costs, expenses and attorney's fees incurred by Contractor in
defending, responding to and/or discharging liens or claims filed by Subcontractor and/or any of
Subcontractor's sub-subcontractors, suppliers, materialman, and all other persons or entities acting
by, through, or under it or them whenever a valid lien waiver is in place on a Project.
36.3 As a prerequisite to payment, Subcontractor agrees that it will execute, in a form satisfactory to
owner, all documents required by Contractor that evidence, ensure, and guarantee that the
Subcontractor has made payment for all Work performed in connection with this Subcontract,
including, but not limited to, Releases and Partial Waiver of Liens, in consideration for each and
every payment and up the date covered by the payment, whether partial or final. Said Releases
and Partial Waiver of Liens shall include, whenever so requested by Contractor, and in a form
acceptable to Contractor, Partial Waiver of Liens and Release of claims, costs, expenses, fees,
charges, changes, change orders, or change order requests that arise out of or relate to
Subcontractor's Work performed from all contractors, suppliers, persons and/or entities that have,
or will, provide labor, materials, equipment, machinery, fixtures, services, or labor under any
agreement(s) with Subcontractor for the Subccx wactor's Work under this Subcontract. A sample
Partial Lien Waiver and Release Form is attached hereto as Exhibit "C" to this Subcontract.
Contractor reserves the right to modify the form of this Partial Lien Waiver and Release.
36.4 The Subcontractor, when required by the Contractor as a condition precedent to the making of
final payment hereunder, shall furnish to the Contractor a full and complete release and discharge,
in a form satisfactory to the Contractor, of all liens, claims and demands arising out of or relating
to the Subcontract work and any and all materials furnished, work done and equipment used in
connection therewith. Furthermore, if, prior to final payment, the Owner or any party providing
financing for the Project requests a release of liens from the Subcontractor, the Subcontractor shall
execute and deliver such reuse of liens in a form satisfactory to the Owner or such other party.
Article 37. Applicable Law
37.1 The law of the State in which the project is located, not including choice of law analysis, shall be
applicable to this Contract and shall be used to decide any dispute related to this Contract.
Article 38. Determination of Disputes
38.1 Any dispute arising out of or related to this Subcontract shall be governed by the laws of the
Commonwealth of Pennsylvania. Subcontractor submits to personal jurisdiction in Cumberland
County, Pennsylvania, and expressly waives any right to select venue or object to any venue
selected by Contractor, in any action arising out of or related to this Subcontract or any bond(s)
posted by Contractor. Subcontractor agrees that if any dispute arising out of or related to this
Subcontract, or brought against any bond(s) posted by Contractor, cannot be resolved amicably,
Contractor has an express right to select venue for appropriate legal or equitable proceedings
(including arbitration pursuant to Section 38.2) in Cumberland County, Pennsylvania or the site of
the Project. Subcontractor acknowledges that Contractor's Bonding Company is an intended
third-party beneficiary of this provision.
38.2 If a dispute arising out of or relates to this Contract, or breach thereof, and if the dispute cannot be
settled through pre-litigation negotiations, the Contractor and Subcontractor agree, at the
Contractor's sole election, to subject the dispute to arbitration administered by the American
Arbitration Association under its Construction Industry Arbitration Rules whereby a judgment on
the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.
Under such circumstances, the Arbitrator(s) shall have the exclusive power to determine issues of
arbitrability. Such arbitration shall be final and binding upon the parties.
Article 39. Nondiscrimination in Employment
39.1 UNLESS EXEMPT IN ACCORDANCE WITH EXECUTIVE ORDER 11246 OF SEPTEMBER
24, 1965, DURING THE PERFORMANCE OF THIS CONTRACT, THE SUBCONTRACTOR
AGREES AS FOLLOWS:
39.2 The Subcontractor will not discriminate against any employee, or applicant for employment
because of sex, race, religion, color or national origin. The Subcontractor will take affirmative
action to ensure that applicants are employed and that employees are treated during employment
without regard to their age, sex, religion, color or national origin. The Subcontractor agrees to
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post in conspicuous places, available to the employees and applicants for employment, notices to
be provided setting forth the provisions of the nondiscrimination clause.
39.3 The Subcontractor will state, in all solicitations or advertisement for employees, placed by or on
behalf of Subcontractor, that all qualified applicants will receive consideration for employment
without regard to sex, race, religion, color or national origin.
39.4 The Subcontractor will comply with all provisions of Executive Order 11246 of September 24,
1965 and the rules, regulations and relevant orders of the Secretary of Labor.
39.5 The Subcontractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965 and by the rules, regulations and orders of the Secretary of Labor, or pursuant
thereto, and will permit access of his books, records, and accounts by the administering agency
and the Secretary of Labor for purposes of investigation to ascertain compliance with rules,
regulations and orders.
39.6 In the event the Subcontractor is in non-compliance with the nondiscrimination clauses of the
Contract or with any of the said rules, regulations or orders, this Contract may be canceled,
terminated or suspended in whole or in part, and the Subcontractor maybe declared ineligible for
further government contracts or federally assisted construction contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965 and such other sanctions
as may be imposed and remedies invoked as provided in the said Executive Order or by rules,
regulations or orders of the Secretary of Labor, or as otherwise provided by Law.
39.7 The Subcontractors will include the provisions of Paragraph One (1) through Seven (7) in every
Sub-Contract or Purchase Order unless exempted by rules, regulations and orders of the Secretary
of Labor issued pursuant to Executive Order 112-46 of September 24, 1965, so that such provisions
will be binding upon each Sub-contractor or Vendor. The Subcontractor will take such action
with respect to any Sub-subcontract or Purchase Order as the administering agency may direct as a
means of enforcing such provisions, including sanctions for noncompliance; provided however,
that in the event the Subcontractor becomes involved in, or is threatened with, litigation with a
Sub-subcontractor or vendor as a result of such direction by the administering agency, the
Subcontractor may request the United States to enter into such litigation to protect the interests of
the United States.
Section F Special Provisions:
The below listed exhibits are attached hereto and made a part of this Subcontract:
"A" - Scope of Work
"B" - Insurance Requirements
HERRE BROS. INCORPORATED
By William H. Euker, Vice President Date
Witness /)tpnlr
PA PRIDE INSULATION, INC.
(SUBCONTRACTOR
'I A*
BY a,?? L. Q,v?c(arA
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EXHIBIT "A"
SCOPE OF WORK
THIS SCOPE OF WORK IS AS FOLLOWS, BUT NOT
LIMITED TO PROVIDE LABOR, MATERIAL AND
EQUIPMENT NECESSARY FOR THE FOLLOWING:
HOT WATER PIPING 1/2 TO 1-1/4" PIPE, 1/2" THICK,
1-1/2" & LARGER -1 " THICK
COLD WA'T'ER PIPING 1/21' TO 1-1/4" PIPE,
3/4" THICK, 1-1/2" & LARGER - 1" THICK
HORIZONTAL RAIN WATER - 1 "THICK ON ALL PIPE.
CONDENSATE DRAINS - 1/2" THICK ON ALL PIPE.
ALL WORK IS PER PLANS, SPECIFICATIONS AND
ADDENDUMS FOR THIS SHIPPENSBURG
UNIVERSITY PROJECT.
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INSURANCE REQUIREMENTS
(A) Prior to starting the Work, Subcontractor shall provide Contractor
with certificates of insurance naming Contractor as additional insured,
for public liability, property damage, automobile and truck liability and
workers' compensation. General liability limits should not be less than
$1,000,000 each occurrence and $2,000,000 aggregate. Automobile and
truck liability should not'be legs4hat'$1,4+N,000 each occurrence. All
coverage should be from responsible insurers acceptable to Contractor.
(B) Certificates of all insurance shall provide for ten days' written notice
to Contractor of changes in or cancellation of any such insurance.
Subcontractor shall defend, indemnify, and hold harmless the
Con trmtor for any and .all claims for bodily Mptiry and/or property
damage caused in whole or in part by acts or omissions by the
Subcontractor.
EXHIBIT "B"
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff ???ttv ofu+ufir???
Jody S Smith
Chief Deputy Y 20 1 OCT 20 All 8:[,;; 1
F?!
Richard W Stewart
PFI E c c ????t'?F.?ER AL C a ;
SOiICItOr OP i P ??y 41, ti 1 x,.`;,4 E`j I s 11 PA Pride Insulation, Inc. Case Number
vs. 2011-7625
The Cincinnati Insurance Company
SHERIFF'S RETURN OF SERVICE
10/07/2011 On this date Ronny R. Anderson, Sheriff mailed the within Complaint and Notice by certified mail, return
receipt requested to The Cincinnati Insurance Company.
10/11/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he served the within
Complaint and Notice upon the within named defendant, The Cincinnati Insurance Company, in the
following manner: On October 7, 2011 the Sheriff mailed by certified mail, return receipt requested a true
and correct copy of the within Complaint and Notice to the defendant's last known address of P.O. BOX
145496, Cincinnati, Ohio 45250. The certified mail return receipt card was received by the Cumberland
County Sheriffs Office signed by Ricky Jones, adult in charge for The Cincinnati Insurance Company on
October 11, 2011.
SHERIFF COST: $38.37
October 18, 2011
SO ANSWERS,
--, 20 ?/ ?,
RON R ANDERSON, SHERIFF
!ri GounrySuite Shentf, ielecsoft. Inc.
John G. Milakovic
PA ID # 34834
Thomas S. Beckley
PA ID # 77040
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Attorneys for Plaintiff
PA PRIDE INSULATION, INC.,
Plaintiff
V.
THE CINCINNATI INSURANCE
COMPANY,
Defendant
(It! W
P; °
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L Pry 2: '_a
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO. 2011-7625
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above-captioned action as settled, discontinued, and ended, with
prejudice.
Dated: j 1 /0 /I/
Of Counsel
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Respectfully submitted,
Jolfi G. Milakovic
Thomas S. Beckley
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing document was this day served upon the
following person in the manner below indicated.
FIRST CLASS MAIL
Michael J. Sams, CPCU, AIC
Superintendent, Bond Claims
The Cincinnati Insurance Companies
P.O. Box 145496
Cincinnati, OH 45250-5496
Date: t i ll ,7 h f 1
J G. Milakovic